Résumé de EPC2000 Art 056 pour la décision T1050/22 du 09.07.2024

See also abstract under Article 76(1) EPC. In T 1050/22, with regard to obviousness, the relevant question was whether the skilled person would have contemplated a reduction of the amount of mannitol to less than 0.5 w/v%, by partially replacing mannitol with propylene glycol and/or glycerine, while at the same time further reducing the concentration of BAC to less than 0.0035 w/v%, in the presence of an anionic polymer and any of the defined suspended active agents, with a reasonable expectation of still meeting appropriate antimicrobial preservation. The main argument of the respondent was that any technical effect associated with individual distinguishing features over D1 could not be split up and that the nature and concentration of all the components had a combined effect. The respondent claimed that neither D1, nor any other cited prior art document provided any hints towards the claimed combination of ingredients, let alone their concentrations. The board disagreed and considered that the subject-matter of claim 1 was a simple aggregation of known features and that the implementation of each feature was obvious in view of the cited prior art. There was in the board's view no evidence of a general relationship between the effects from the distinguishing features. It thus considered that, in the present case, the individual differentiating features were mostly the result of specific individual technical effects, and not of a combined technical effect different from the sum of the technical effects of the individual features. These features and their related effects were per se known from either the closest prior art (D1) or from the additionally cited documents. The claimed solution involved a combination of several components, including brinzolamide, an anionic polymer, a surfactant, sodium chloride, a first polyol (mannitol or sorbitol), a second polyol (propylene glycol or glycerine), borate, benzalkonium chloride (BAC) as an antimicrobial preservative, and water. However, the board noted that D2 already suggested the use of brinzolamide in ophthalmic compositions in the treatment of glaucoma, which exhibiting poor water solubility had to be formulated in a suspension. This common knowledge was reflected in the teaching of document D18 , from which it was known to use anionic polymers such as carbomers as suspending agents for these active agents. Ophthalmic compositions comprising a borate-polyol complex for increasing the antimicrobial efficacy of other antimicrobial agents were known from D1. A borate-polyol system such as claimed was furthermore known from D4. Moreover, D4 disclosed specifically a composition which corresponded qualitatively and quantitatively to the borate/polyol system of claim 1 of auxiliary request 13. D7 disclosed that the tear osmolality corresponded to the claimed osmolality of the composition. In light of the above, the board concluded it would have been straightforward for the skilled person faced with the objective technical problem to modify formulations 9 or 10 of document D1. Consequently, the subject-matter of claim 1 of auxiliary request 13 did not involve an inventive step (Art. 56 EPC). The remaining auxiliary requests were found to either be contrary to the requirements of Art. 76(1) EPC (auxiliary requests 1-12, 14-18, 20- 23) or Art. 56 EPC (auxiliary request 19).